Sheehan v Bus Éireann_Irish Bus

• Jurisdiction: Ireland
• Judge: Mr Justice David Keane
• Judgment Date: 03 April 2020
• Neutral Citation: [2020] IEHC 160
• Docket Number: 2018 No. 652P
• Court: High Court
• Date: 03 April 2020

BETWEEN

LISA SHEEHAN

PLAINTIFF

AND

BUS ÉIREANN/IRISH BUS

AND

VINCENT DOWER

DEFENDANTS

[2020] IEHC 160

David Keane J.

2018 No. 652P

THE HIGH COURT

Personal injuries – Damages – Psychiatric injury – Plaintiff seeking damages for psychiatric injury – Whether the law recognises a right of recovery for the psychiatric consequences of witnessing an accident, if the primary victim is the tortfeasor rather than a blameless third party

Facts: The plaintiff, Ms Sheehan, applied to the High Court seeking damages for the psychiatric injury that resulted from her presence at the scene of a road traffic accident. The defendants, Bus Éireann and Mr Dower, were the persons responsible for each of the two vehicles directly involved in that collision. The defendants’ first argument was that Ms Sheehan was merely a secondary victim of the road traffic accident and that, as such, even if she could establish that her psychiatric illness was a reasonably foreseeable consequence of the defendants’ negligence, she could not bring herself within the restricted category of such victims whose claims can succeed under the rigid test developed by the UK House of Lords in the cases of Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, Page v Smith [1996] AC 155 and White v Chief Constable of South Yorkshire Police [1999] 2 AC 455. The defendants’ second argument was that Ms Sheehan’s claim must fail because, as a matter of policy, there is no liability in negligence where the primary victim was the negligent defendant and the shock to the plaintiff arose from witnessing the defendant’s self-inflicted injury.

Held by Keane J that the deceased driver in this case, represented by FBD Insurance, did owe Ms Sheehan a duty of care not to cause her a reasonably foreseeable injury in the form of psychiatric illness. Keane J could identify no consideration of public policy that dictated otherwise. Further, he concluded that it was just and reasonable that the law should impose that duty on FBD for the benefit of Ms Sheehan. He noted that there was no dispute that Ms Sheehan satisfied each of the other elements of the test to establish the defendants’ liability to her in negligence. He held that Ms Sheehan was entitled to recover damages from FBD to compensate her for the psychiatric injury she had sustained.

Keane J held that he would assess general damages in an amount that provided reasonable compensation for the pain and suffering that Ms Sheehan had endured and would likely endure in the future: Nolan v Wirenski [2016] 1 I.R. 461 (at 470). He assessed Ms Sheehan’s general damages in the sum of €65,000 to date and €20,000 into the future, making a total of €85,000. Special damages were agreed in the sum of €2,238. The total award was, therefore, €87,238.

Judgment for the plaintiff in the sum of €87,238.

JUDGMENT of Mr Justice David Keane delivered on the 3rd April 2020

Introduction

1 In this personal injuries action, the plaintiff Lisa Sheehan seeks damages for the psychiatric injury that resulted from her presence at the scene of a road traffic accident. The defendants are the persons responsible for each of the two vehicles directly involved in that collision.

2 The case raises two fundamental issues on the law governing liability for negligently inflicted psychiatric damage. First, what is the nature and scope of the duty of care not to cause a reasonably foreseeable psychiatric injury to a person who is not directly involved in the accident caused by that breach of duty? Second, does the law recognise a right of recovery for the psychiatric consequences of witnessing an accident, if the primary victim is the tortfeasor rather than a blameless third party?

Background

3 The accident occurred after dark on the winter evening of 28 January 2017, at a point on the N72 national secondary road in the townland of Gearanaskagh, a short distance west of Mallow, County Cork. A passenger bus travelling east was struck head on by a single occupant motor car travelling west. The bus was owned and operated by the first defendant Bus Éireann. The driver of the car was killed in the crash and the second defendant Vincent Dower is the nominated representative of that vehicle's insurer, FBD Insurance (‘FBD’).

4 When the accident happened, Ms Sheehan was driving alone on the westbound carriageway of the N72, commuting from her job as a hairdresser in Cork city to her home in the village of Banteer in North Cork. Although Ms Sheehan did not see the collision take place ahead of her on the dark roadway, some debris from it struck her car, prompting her to brake to a halt. On getting out of her car to investigate, she saw the damaged bus, stationary on the eastbound carriageway to her right. Then she saw the car, motionless and severely damaged, a short distance in front of her on the westbound carriageway. There was diesel oil and, perhaps, blood on the roadway. She ran to the car and, on peering into the back, glimpsed the badly disfigured and partly decapitated body of what looked like a child, which gave her a tremendous fright. Although in shock, Ms Sheehan called the emergency services on her mobile phone to report the accident and summon help. Before help arrived, she searched the surrounding area for other victims who might have been thrown from the car. Providentially, there were none. The mutilated body in the back was that of the adult driver; it had been propelled there by the tremendous forces involved in the impact between the two vehicles. Ms Sheehan later encountered the driver of the bus, whose face was covered in blood. After the emergency services arrived, a guard who was concerned about her mental state advised Ms Sheehan to have someone come to collect her and to immediately consult her general practitioner but, in hindsight perhaps rashly, Ms Sheehan decided to drive home as she did not want to alarm her husband.

5 The deceased driver of the car and the driver and occupants of the bus were strangers to Ms Sheehan.

6 Nonetheless, because of what she witnessed at the scene of the accident, Ms Sheehan experienced a depressive adjustment reaction and developed a moderately severe post-traumatic stress disorder for which the prognosis remains guarded. Those are the injuries for which she claims damages.

7 Ms Sheehan pleads that those injuries have resulted from the negligent operation or control of one, or both, of the vehicles involved in the crash, making one, or both, of the defendants liable to her in damages.

8 Bus Éireann denies negligence. FBD admits that the accident was caused by the negligence of the driver of the car. Its solicitors have now taken over the defence of the action on behalf of both defendants.

9 Both sides acknowledge that the resolution of the case turns on the plea advanced by FBD that, on the facts presented, Ms Sheehan's psychiatric injuries do not give rise to any cause of action recognised by the law, in that the defendants did not owe her any duty of care for two reasons; first, because Ms Sheehan was merely a ‘secondary victim’ of the accident and cannot meet the additional requirements that, as a matter of policy, the law imposes on persons in that category, to establish the existence of such a duty; and second, because the driver of the car was a ‘primary victim’ of self-inflicted injuries and, as such, owed no duty to a secondary victim, such as Ms Sheehan, who suffered psychiatric injury as a result. In support of the first proposition, the defendants rely on the principles developed in a trilogy of House of Lords decisions commencing with Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, continuing with Page v Smith [1996] AC 155, and culminating in White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 (on appeal from Frost v Chief Constable of South Yorkshire Police [1998] QB 254 (CA)). In support of the second, they rely on the judgment of Cazalet J in the High Court of England and Wales in Greatorex v Greatorex [2000] 1 WLR 1970.

The proceedings

10 A personal injuries summons issued on behalf of Ms Sheehan on 25 January 2018. Each of the defendants entered an appearance on 6 March 2018. The defence of FBD was delivered on 15 May 2018 and that of Bus Éireann on 4 July 2018. Ms Sheehan issued a notice of trial on 25 July 2018.

11 The trial of the action took place in Cork on 21 and 22 January 2020. Ms Sheehan was represented by Eoin Clifford SC and John Lucey SC with Colman 6 Donnchadha BL, instructed by Martin A. Harvey, Solicitors. The defendants were represented by John Lynch SC with Donal T. McCarthy BL, instructed by O'Riada, Solicitors. I am grateful to counsel for their deft submissions.

The Evidence

12 There is only very limited conflict between the parties on the material facts.

13 Just two witnesses gave evidence at trial. They were Ms Sheehan, the plaintiff, and John G. Sullivan, an independent expert engineer and assessor retained on her behalf. The defendants did not call any witnesses.

14 By agreement between the parties, various medical reports were admitted into evidence without formal proof. It is to the contents of those reports and to Ms Sheehan's testimony on the injuries she sustained that I now turn.

Ms Sheehan's psychiatric injury

15 Ms Sheehan is a married woman with two young children. At the time of accident, she was 34 years old, and working as a hairdresser.

16 On Tuesday, the 31 January 2017, three days after the accident, she went to her general practitioner, Dr Jacinta Barry, having suffered a panic attack at work. She was tearful and agitated and reported that she could not get the images of the accident out of her mind. Dr Barry prescribed anxiolytic (anxiety inhibiting) and anti-depressant medication, referred Ms Sheehan for counselling, and certified her as unfit for work over the next five weeks. Due to subsequent recurrences of acute...